The In/determinacy of Human Rights: A Response to O’Connell

Dóra-Maurer-Seven-Rotations-1-6-1979-e1416919105966-1170x655Paul O’Connell recently argued that human rights are not a trap for emancipatory and radical projects. They can be productively placed with different discourses like anti-capitalism, anti-racism or queer politics, generating productive moments of resistance. He argues against what he calls a ‘monolingual’ idea of struggle where movements can only engage with one discourse at a time. We can escape the dominant rendering found in international human rights law, and instead engage with an ‘emancipatory multilingualism’ where rights are joined with other counter-hegemonic ideas. Wendy Brown is his foil here:

Brown… argue[s] that in light of the renewed vigour of American imperialism, perhaps instead of human rights support for indigenous movements in post-colonial societies,… other narratives would be more efficacious in resisting the depredations of the global imperial order. She further argues that if one approach is to be favoured over the other, then we must recognise that it is difficult to engage in simultaneous emancipatory projects at once. Finally, Brown concludes by arguing that the language of human rights ‘is a politics and it organizes political space, often with the aim of monopolizing it’.

Human rights displace other politics, Brown tells us, colonising the terrain of radical demands, and thereby foreclosing the possible results (this is the displacement thesis of O’Connell’s title). Rather than arguing for a monolingualism of struggle, the point that Brown is making, I suggest, is that human rights structurally determine political struggles. They require and generate identities that later become a trap for those that struggle. As a counterpoint then, O’Connell argues that rights are indeterminate (or at least less determinate). The sense of rights can be radically changed depending on whether they are paired with ‘corporate human rights’ for instance, or an indigenous community challenging an extractivist mega-project.

The old critical legal studies mantra was that law was politics and provided no fixed outcome that could be determined by legislative or caselaw based system. The rules did not automatically produce answers. For decades, the battle raged between the crits, realists and the positivists, that is between those who claimed that law was entirely indeterminate and that those defended hard case indeterminacy or partial indeterminacy. However, the indeterminacy of rights is more complex. The crits would usually argue that rights are normatively indeterminate, but structurally determinate.

The jurisprudence of the national and international human rights courts attempts to suture this normative indeterminacy. However as O’Connell sees, the legal framework is not the only mode of making sense of rights. It is their (at least) partial indeterminacy that would allow them to be put alongside other discourses and be changed by them. Thus, it does not matter, as he has said elsewhere that the right to water is often juridically rendered in a ‘market friendly’ way. When Irish protestors refuse the neoliberal privatisation of water under the banner of rights they radically refashion the discourse.

Against this sense of the normative indeterminacy of rights, we can see that when placed in the language of human rights, the struggle is determined in certain ways. This is not to say that rights are a determinative framework giving ‘right answers’, but to insist that there is a deeper determinacy at play. We have known for centuries that rights tend to be individualising, in some approaches rights pose an ownership over the self and so render the possessive individual as their subject; or rights juridify politics, shifting it from the streets into the courtroom where the terms of the struggle are radically changed; or again, in Wendy Brown’s critique, rights claims operate by projecting an identity which subsequently becomes a cage. They capture those who fought for recognition and hold them to an idealised standard (the non-threatening gay marriage, the good middle class african american who doesn’t mention slavery, police targeting or structural racism, etc). These and many other criticisms identify a deep structural determinacy, which will mark most claims made through rights.

So the question that O’Connell raises is actually whether human rights can be structurally reconstructed by combining them with different discourses. Or whether, by framing a claim through rights, struggles get trapped. In fact what appears to be a stark polarity between O’Connell and Brown, is actually far softer disagreement. O’Connell acknowledges that rights are not ‘unproblematic’, and Brown accepts that rights have made major gains for the left. The tension, seems to me to remain a strategic disagreement about the pitfalls of rights discourse.

Whether you find yourself as a rights optimist or pessimist, the question becomes the extent to which we must play with rights to mitigate the structural determinacy. But it is not a simple spectrum. Some, like O’Connell, would argue for using extant rights as a prelude to other demands. Socio-economic rights for instance potentially clear the way for other more radical redistributive projects. Others challenge the frameworks for using rights: for instance Verges’ use of legal cases as a strategy of rupture; or the Chilean protests on the right to education. These challenge the politico-legal rights procedures. There are those who create new rights to challenge individualism: Lefebvre’s right to the city (to a democratic remaking of the city) and the rights of autogestion (to the radical self-management of the workplace). Or those who insist that we think differently about the subject produced in rights talk: Foucault’s rights of the governed for instance. But there is another option that O’Connell seems to foreclose. Brown is ultimately writing against the necessity of turning to rights, the seeming unavoidability (at that particular historical juncture) of rights as a way of framing feminist demands. It is essential that we understand the pitfalls of rights, precisely so that it is possible to understand when it is essential not to use them.

Illan rua Wall is associate professor of law at the University of Warwick.

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